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posted by Keito 2012-09-28 10:32:20

'US military's new legal theory threatens to convert unauthorized leaks into a capital offense. Who is the real 'enemy'?

A US air force systems analyst who expressed support for WikiLeaks and accused leaker Bradley Manning triggered a formal military investigation last year to determine whether she herself had leaked any documents to the group. Air Force investigative documents, obtained through a Freedom of Information Act request, show that the analyst was repeatedly interviewed about her contacts with and support for WikiLeaks - what investigators repeatedly refer to as the "anti-US or anti-military group" - as well as her support for the group's founder, Julian Assange.

The investigation was ultimately closed when they could find no evidence of unauthorized leaking, but what makes these documents noteworthy is the possible crime cited by military officials as the one they were investigating: namely, "Communicating With the Enemy", under Article 104 of the Uniform Code of Military Justice (UCMJ).

That is one of the most serious crimes a person can commit - it carries the penalty of death - and is committed when a person engages in "unauthorized communication, correspondence, or intercourse with the enemy". The military investigation form also requires investigators to identify the "victim" of the crime they are investigating, and here, they designated "society" as the victim:

How could leaking to WikiLeaks possibly constitute the crime of "communicating with the enemy"? Who exactly is the "enemy"? There are two possible answers to that question, both quite disturbing.

The first possibility is the one suggested by today's Sydney Morning Herald article on these documents (as well as by WikiLeaks itself): that the US military now formally characterizes WikiLeaks and Assange as an "enemy", the same designation it gives to groups such as Al Qaeda and the Taliban. This would not be the first time such sentiments were expressed by the US military: recall that one of the earliest leaks from the then-largely-unknown group was a secret report prepared back in 2008 by the US Army which, as the New York Times put it, included WikiLeaks on the Pentagon's "list of the enemies threatening the security of the United States". That Army document then plotted how to destroy the group.

But it's the second possibility that seems to me to be the far more likely one: namely, that the US government, as part of Obama's unprecedented war on whistleblowers, has now fully embraced the pernicious theory that any leaks of classified information can constitute the crime of "aiding the enemy" or "communicating with the enemy" by virtue of the fact that, indirectly, "the enemy" will - like everyone else in the world - ultimately learn of what is disclosed.

Indeed, the US military is currently prosecuting accused WikiLeaks leaker Bradley Manning on multiple charges including "aiding the enemy", also under Article 104 of the UCMJ, and a capital offense (though prosecutors are requesting "only" life imprisonment rather than execution). Military prosecutors have since revealed that their theory is that the 23-year-old Army Private "aided al-Qaida by leaking hundreds of thousands of military and other government documents" -- specifically, that "Manning indirectly aided al-Qaida in the Arabian Peninsula by giving information to WikiLeaks."

It seems clear that the US military now deems any leaks of classified information to constitute the capital offense of "aiding the enemy" or "communicating with the enemy" even if no information is passed directly to the "enemy" and there is no intent to aid or communicate with them. Merely informing the public about classified government activities now constitutes this capital crime because it "indirectly" informs the enemy.

The implications of this theory are as obvious as they are disturbing. If someone can be charged with "aiding" or "communicating with the enemy" by virtue of leaking to WikiLeaks, then why wouldn't that same crime be committed by someone leaking classified information to any outlet: the New York Times, the Guardian, ABC News or anyone else? In other words, does this theory not inevitably and necessarily make all leaking of all classified information - whether to WikiLeaks or any media outlet - a capital offense: treason or a related crime?

International Law Professor Kevin Jon Heller made a similar point when the charges against Manning were first revealed:

"[I]f Manning has aided the enemy, so has any media organization that published the information he allegedly stole. Nothing in Article 104 requires proof that the defendant illegally acquired the information that aided the enemy. As a result, if the mere act of ensuring that harmful information is published on the internet qualifies either as indirectly 'giving intelligence to the enemy' (if the military can prove an enemy actually accessed the information) or as indirectly 'communicating with the enemy' (because any reasonable person knows that enemies can access information on the internet), there is no relevant factual difference between Manning and a media organization that published the relevant information."

Professor Heller goes on to note that while "WikiLeaks or the New York Times could not actually be charged under Article 104" because "the UCMJ only applies to soldiers", there is nonetheless "still something profoundly disturbing about the prospect of convicting Manning and sentencing him to life imprisonment for doing exactly what media organizations did, as well".

What these new documents reveal is that this odious theory is not confined to Manning. The US military appears to be treating all potential leaks - at least those to WikiLeaks - as "aiding" or "communicating with" the enemy. But there is no possible limiting principle that would confine that theory only to such leaks; they would necessarily apply to all leaks of classified information to any media outlets.

It is always worth underscoring that the New York Times has published far more government secrets than WikiLeaks ever has, and more importantly, has published far more sensitive secrets than WikiLeaks has (unlike WikiLeaks, which has never published anything that was designated "Top Secret", the New York Times has repeatedly done so: the Pentagon Papers, the Bush NSA wiretapping program, the SWIFT banking surveillance system, and the cyberwarfare program aimed at Iran were all "Top Secret" when the newspaper revealed them, as was the network of CIA secret prisons exposed by the Washington Post). There is simply no way to convert basic leaks to WikiLeaks into capital offenses - as the Obama administration is plainly doing - without sweeping up all leaks into that attack.

Of course, that outcome would almost certainly be a feature, not a bug, for Obama officials. This is, after all, the same administration that has prosecuted whistleblowers under espionage charges that threatened to send them to prison for life without any evidence of harm to national security, and has brought double the number of such prosecutions as all prior administrations combined. Converting all leaks into capital offenses would be perfectly consistent with the unprecedented secrecy fixation on the part of the Most Transparent Administration Ever™.

The irony from these developments is glaring. The real "enemies" of American "society" are not those who seek to inform the American people about the bad acts engaged in by their government in secret. As Democrats once recognized prior to the age of Obama - in the age of Daniel Ellsberg - people who do that are more aptly referred to as "heroes". The actual "enemies" are those who abuse secrecy powers to conceal government actions and to threaten with life imprisonment or even execution those who blow the whistle on high-level wrongdoing.'

posted by Keito 2012-08-19 14:55:09

'Daniel Ellsberg, the most famous whistleblower in the United States, praises Ecuador for granting political asylum to Julian Assange to avoid extradition to Sweden for questioning over sex crime accusations. "I congratulate Ecuador, of course, for standing up to the British Empire here, for insisting that they are not a British colony, and acting as a sovereign state ought to act," says Ellsberg, who leaked the Pentagon Papers in 1971, the secret history of the U.S. involvement in Vietnam. On Thursday, British Foreign Secretary William Hague said Assange would be arrested if he left the embassy, saying Britain is "under a binding obligation to extradite him to Sweden." Ellsberg adds: "[Assange] has every reason to be wary that the real intent here is to whisk him away to America, where it really hasn’t been made as clear what might be waiting for him.'

JUAN GONZÁLEZ: For more on Julian Assange, we’re joined by Daniel Ellsberg, perhaps the country’s most famous whistleblower. He leaked the Pentagon Papers in 1971, the secret history of U.S. involvement in Vietnam. He joins us from Berkeley.

Welcome to Democracy Now! Dan Ellsberg, your response to the latest developments of the decision of Ecuador to grant asylum?

DANIEL ELLSBERG: Well, I congratulate Ecuador, of course, for standing up to the British Empire here, for insisting that they are not a British colony, and acting as a sovereign state ought to act. And I think they’ve done the right thing. I appreciate what they’ve done.

AMY GOODMAN: And the British government first threatening to raid the Ecuadorean embassy in London, also saying they would arrest Julian Assange if he attempted to leave to go to Ecuador, but also saying they’d actually raid the embassy?

DANIEL ELLSBERG: It’s an outrageous proposal, which actually undermines the security of every diplomat in the world, in this country right now. I would say it has a chilling effect right now, the very fact that that possibility has been raised. I’m old enough to remember the occasion that gave rise to that, actually. I remember when a Libyan official shot from the Libyan embassy in London and killed a British female officer—Vivian [Yvonne Joyce Fletcher], I think her name was—in 1984. The result of that was that they removed diplomatic recognition from Libya altogether, sent everybody home. They didn’t raid the embassy on that occasion, but that led three years later to a law that permitted them, under extraordinary circumstances, to do that again. They obviously don’t have anyone here who’s been shooting from the Ecuadorean embassy at anyone. He’s merely been telling the truth, there as in London earlier. He should be congratulated for that, not threatened.

JUAN GONZÁLEZ: And, Dan Ellsberg, again, the extraordinary efforts that are being taken here by the British government—and, obviously, the Swedish government—supposedly just to question him on allegations of a sexual attack, not even actual charges.

DANIEL ELLSBERG: Well, everything that we’ve seen supports the position of his defense team, that this is not about sexual charges in Sweden, essentially, that that’s a cover story—whatever substance there may be to that story. But the procedures that have been followed here are extraordinary: a red notice here, very unusually given, never under these circumstances, to arrest him and these heavy efforts to extradite him, after he had offered either to be questioned by the prosecutor herself or by some representative of her in the Swedish embassy or the British embassy or by British police in London, where he was, something that, by the way, is routinely done all the time, and the expense is paid for that, if necessary—all of that being refused. Why? In a situation where this man is charged with criminal charges by no country—not by Sweden, not by Britain, not by the United States, although there may in fact be a secret indictment already waiting for him in the United States, being denied or lied about right now by my country. But no charges have actually been made public. So, here, all this emphasis just to get him charged—just to get him questioned, rather, when he’s offered himself for questioning, even right now in the Ecuadorean embassy. The state of Ecuador has actually officially proposed that that take place in the Ecuadorean embassy or elsewhere and in London. And that has been refused. All of this supports the idea that this is merely a way of getting him to Sweden, which apparently would be easier to extradite him from to the United States than Britain. If Britain were totally open to extraditing him, it would have happened by now. Two years have passed. But he’s an Australian citizen, a member of the Commonwealth, and the criteria for extraditing somebody who’s been telling the truth and is wanted for what can only be a political crime in another country are apparently more stringent here than they might be in Sweden.

So I think that—in fact, I join his lawyers, Michael Ratner and others, in saying that he has every reason to be wary that the real intent here is to whisk him away to America, where it really hasn’t been made as clear what might be waiting for him as I think one can conjecture. The new National Defense Authorization Act—and I’m a plaintiff in a suit to call that act unconstitutional, in terms of its effect on me and on others, a suit that has been successful so far at the district court level and has led to that act being called unconstitutional. But on its face, that act could be used against Julian Assange or Bradley Manning, if he weren’t already in military custody. Julian Assange, although a civilian, and not an American civilian at that, would seem to me, a layman, to be clearly subject to the National Defense Authorization Act, the NDAA, putting in military detention for suspicion of giving aid to an enemy, which he’s certainly been accused of by high American officials. I don’t see why he couldn’t be put in indefinite contention, without even the charges that I faced 40 years ago for doing the exact same things that he did.

AMY GOODMAN: The record of President Obama on whistleblowers: six whistleblowers charged under the Obama administration, more than in all—under the administrations of all past presidents combined, Dan Ellsberg?

DANIEL ELLSBERG: Twice as many. Twice as many as all past presidents. There was a total of three under past presidents, one each. I was the first ever charged with those charges. Obama has brought six such charges. And apparently his grand jury in Virginia is seeking at least a seventh, and perhaps more, against Assange and others. Twice as many as all previous.

AMY GOODMAN: You were charged? You were indicted for having secret documents and giving them away?

DANIEL ELLSBERG: For possessing them and for possessing them without authorization. There was a second grand jury going on that would have gotten me in a second trial for distribution, which of course I was also involved in. I didn’t contest any of the facts. And would—that would probably, for the first time, have brought in newspaper people, like Neil Sheehan and Hendrick Smith. That was quashed after government criminality led to the ending of my trial, and so they dropped the other grand jury. As a result, we have no prior precedent of a newspaper person being tried under that charge. I was a former official. Julian Assange would be the first, again, charged. No newspaper person has been so charged.

JUAN GONZÁLEZ: And, Dan Ellsberg, the impact already of this hounding of Assange by the Swedish, and clearly with the United States government in the wings, behind the scenes, orchestrating a lot of this—the impact on WikiLeaks and on other whistleblowers? The message that’s being sent, that if you dare to go against the empire, you will be hounded and gone after?

DANIEL ELLSBERG: That’s hardly an amazing message. It was, of course, to be expected. There was reason to think that an international organization with no national roots here, and using the internet, would escape that kind of chilling effect. And they found the empire here is more resourceful and creative and less mindful of its own constitution and laws and traditions than one might have hoped. But, anyway, it’s hardly surprising that when you twist the lion’s tail, the lion may get very angry. Their ability to shut off the funding by intimidating, without even invoking the law, places like PayPal and Amazon and others from giving any money to or serving as distribution channels is very dismaying. It’s a sign, and not unique, of the way in which our fundamental rights, our Bill of Rights, our constitutional freedoms, have been abridged by the last 10 years and more. And President Obama is, unhappily, following in that tradition, as, I must say, I predicted, unhappily, when I urged people to vote for him four years ago.

AMY GOODMAN: Finally—

DANIEL ELLSBERG: And I’ll predict people—I’ll predict it unhappily when I vote for people—when I urge people in Florida and swing states to vote for him next time, not in the expectation that he will act like a president rather than a king. We have currently now, and have had for some years, the choice between two candidates for monarchy four years apart.

AMY GOODMAN: Julian Assange’s statement after the Ecuadorean government granted him political asylum, he said, "I’m grateful to the Ecuadorean people, President Rafael Correa and his government. It was not Britain or my home country, Australia, that stood up to protect me from persecution, but a courageous, independent Latin American nation. While today is a historic victory, our struggles have just begun. The unprecedented U.S. investigation against WikiLeaks must be stopped."

And Assange went on to say, "While today much of the focus will be on the decision of the Ecuadorean government, it is just as important that we remember Bradley Manning has been detained without trial for over 800 days. The task of protecting WikiLeaks, its staff, its supporters and its alleged sources continue." That from Julian Assange’s statement yesterday. Final comment, Dan Ellsberg?

DANIEL ELLSBERG: Absolutely. There’s no reason to believe that he would get what in past years, including my time when I was prosecuted, would pass for a fair trial or for fair treatment in this country. I’m sorry to say that there’s been something like a coup some 10 years ago, an executive coup against our Constitution and against the separation of government. It’s outrageous that Bradley Manning’s trial has again been postponed by the action of the government 'til next spring. He will have spent—he's already spent more than 800 days in confinement, 10 months of it and more in conditions that Amnesty International called torture. The idea that President Obama ended torture is simply not true. He didn’t end it even in this country, in terms of isolated commitment, incommunicado, basically, and conditions of nudity, in some cases, intended to humiliate him—all intended to press him to cop a plea and reduce his sentence from the life sentence they’re asking to a much lower sentence, if he will only implicate Julian Assange in ways that would allow them to bring a trial without great embarrassment.

Now, let me enlarge on that for a moment. They don’t have to extradite anyone to bring someone under these charges under the WikiLeaks disclosures. Everything Julian Assange could possibly be charged with under our law was committed as an act by Bill Keller, the president—sorry, the managing editor of—the executive editor of the New York Times. I don’t mean the New York Times should be indicted or that Keller should be indicted. That would be an outrage, just as it is an outrage to think of indicting Julian Assange for exactly the same thing. But meanwhile, Bradley Manning is facing charges that he aided the enemy, absurd charges that amount virtually to treason. And many people have even called for execution of either of them. Well, obviously, the same charges then could lead to Julian Assange being tried under the NDAA, the National Defense Authorization Act, which has just been found unconstitutional by a courageous and right-thinking judge in the first—in the district of Manhattan—

AMY GOODMAN: Dan Ellsberg, we want to thank—

DANIEL ELLSBERG: —right now, which has been—found that act unconstitutional. That’s the act under which I was tried. I wish I had had the chance to go for an injunction under that charge. She’s obviously right.

AMY GOODMAN: Dan Ellsberg, thanks so much for being with us, perhaps the country’s most famous whistleblower. He leaked the Pentagon Papers in 1971, the secret history of U.S. involvement in Vietnam, joining us from University of California, Berkeley.

posted by Keito 2012-08-12 11:46:37

'The question being argued in federal court in Lower Manhattan yesterday boiled down to this: Is a law authorizing the indefinite military detention of American citizens with only the barest recourse to civil courts constitutional?The lawsuit against the Obama administration was filed in January by seven journalists and activists, including Chris Hedges, Noam Chomsky, Naomi Wolf, and Daniel Ellsberg. The suit challenges sections of the 2012 National Defense Authorization Act, which authorize the armed forces to detain

"A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."The act would allow citizens to be detained in overseas military facilities like Guantanamo "until the end of hostilities."

The problem, the plaintiffs argue, is that this language is so vague as to possibly cover all kinds of activity protected by the First Amendment. What is "substantial support?" What are "associated forces?"

For Hedges, a journalist who has spent much of his career meeting and talking with groups and individuals considered terrorists by the U.S. government, the language was chilling.

In his complaint, Hedges argued that the law violated First Amendment protections of speech and association, constitutional guarantees for citizens' access to a civil court system, and Fifth-Amendment due process guarantees.

Judge Katherine Forrest agreed. In a 68-page May ruling, Forrest granted a preliminary injunction blocking the challenged provisions of the act.

"There is a strong public interest in protecting rights guaranteed by the First Amendment," Forrest wrote in granting the temporary injunction. "There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention."

But the temporary injunction of the law was just the first round in the case. Hedges and his fellow plaintiffs were asking the court for a permanent injunction. In a four-hour hearing yesterday, lawyers for the plaintiffs and for the government reargued their cases before Judge Forrest, who interrupted frequently with her own questions and opinions.

Assistant U.S. Attorney Benjamin Torrance repeated his argument that the law signed by Obama on New Year's Eve doesn't actually do anything new, but rather reiterates powers already conferred by the Authorization for the Use of Military Force passed by Congress shortly after 9/11.

That argument didn't persuade Forrest, and she told him so. But it also posed further complications for the administration's case. If the challenged NDAA provisions really didn't change anything, why was the government ready to go to the mat to defend them? Perhaps more troubling, Torrance admitted that the government doesn't specify whether detainees are held under the NDAA provisions or under the Authorization for the Use of Military Force. Consequently, the government was continuing to detain people covered by the challenged provisions in spite of the court's injunction.

Carl Mayer, one of the plaintiff's attorneys, said later that he and his colleagues were considering bringing contempt of court charges over what he called an apparent disregard for the court injunction.

Torrance judge Forrest that for her court to overturn congressional legislation on national security matters would be to overstep the role of the judiciary, but Forrest wasn't so sure. She cited a passage by Alexander Hamilton inFederalist Papers Number 78, "which I'm quite enamored with:"

"Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."Another of the administration's arguments is that the government hasn't so far used the law to detain journalists like Hedges, so fear that it might is unreasonable.

David Remes, one of the plaintiff's lawyers, said that wasn't the point. "The danger posed by the sword of Damocles is not that it falls, but that it can fall," he said.

Forrest also appeared unconvinced, noting that a national election could soon install a new administration with a new set of intentions and interpretations. She quoted Chief Justice John Roberts's ruling in a 2010 case: "The First Amendment protects against the government," Roberts wrote. "It does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it reasonably."

Torrance said the law still allows room for judicial oversight, because people detained under the act can file habeas corpus petitions.

"How long does a petition take?" Forrest asked.

Torrance said he didn't have the numbers in front of him.

"Several years, right?" Forrest prompted.

Torrance allowed that might be true, but noted that in most habeas petitions in the post-9/11 era, courts have found the detention legitimate.

Forrest closed the hearing with a promise that she had not yet made her mind up, Hedges and his lawyers said her earlier ruling on the temporary injunction and her close questioning of Torrance gave them cause for optimism.

Perhaps sensing which way the wind is blowing with Judge Forrest, the Obama administration has already filed an appeal in higher court.'